Reply on property collection of property fees

Case 1: Wuxi Chunjiang Garden Owners Committee v. Shanghai Lujiazui Property Management Co., Ltd. and other property management disputes.

[summary of referee]

According to Article 72 of the Property Law of People's Republic of China (PRC), the owner shall enjoy the rights and undertake the obligations for the part other than the exclusive part of the building. * * * Part of the income generated by the realty service enterprise in the process of realty management (including prophase realty management) shall be owned by all the owners without special agreement, which is mainly used to supplement the special maintenance funds of the community. Property service enterprises can enjoy a certain proportion of profits if they manage the part of * * * *.

Plaintiff: Owners' Committee of Chunjiang Garden, Wuxi City, Jiangsu Province.

Representative: Chang Benjing, director of the owners' committee.

Defendant: Shanghai Lujiazui Property Management Co., Ltd. Wuxi Branch.

Representative: Yuan, manager of this company.

Defendant: Shanghai Lujiazui property management co., ltd

Legal Representative: Xu Erjin, chairman of the board of directors of this company.

The plaintiff, the Owners' Committee of Chunjiang Garden in Wuxi City, Jiangsu Province (hereinafter referred to as the Owners' Committee), filed a lawsuit with the People's Court of Xishan District, Wuxi City, Jiangsu Province for a property management dispute with the defendant Shanghai Lujiazui Property Management Co., Ltd. (hereinafter referred to as Wuxi Branch) and the defendant Shanghai Lujiazui Property Management Co., Ltd. (hereinafter referred to as the Property Company).

The plaintiff's industry committee claimed that on June 25th, 2002, the defendant's property management company and Wuxi Jujiang Real Estate Development Co., Ltd. (hereinafter referred to as Jujiang Company) signed the Preliminary Property Management Entrustment Contract, stipulating that Jujiang Company entrusts the property management company to manage the property of Chunjiang Garden, with the term of June 25th, 2002165438+1October 25th. After the contract was established, the property management company arranged for the defendant Wuxi Branch to implement property management for Chunjiang Garden. On February 22, 2007, 65438+, the plaintiff's industry committee was established according to law. On June 2 1 2008, according to the resolution of the owners' autonomy made by the owners' meeting of Chunjiang Garden, the industry committee sent a letter to the property management company, making it clear that it would no longer sign a property management contract with it, and asked the property management company to handle the handover in time. On July 17, 2008, the property management company sent personnel to formally handle the handover with the industry committee, and signed a handover list, which made it clear that the total amount of property management fees and other expenses that the property management company should hand over to the industry committee was 232,7931.87 yuan, of which the settlement period of part of the income of the community was from June to June 2008. After consulting the materials handed over by the property management company, the industry committee found that Wuxi Branch collected part of the income from the community * * * from 2004 to 2007, and 0 yuan was not included in the transfer. In order to protect the interests of all the owners, they appealed to the court, demanding that the property management company and Wuxi Branch immediately return the 2,273,872.32 yuan (the difference of 54,059.55 yuan is the part that should be returned to the property management company after the two parties entered into an agreement) confirmed in the handover list, and 70% of the profits from 2004 to 2007, namely.

The plaintiff's industry committee submitted the following evidence:

1. The filing certificate of the plaintiff's industry committee 1 copy, and the filing receipt of the Wuxi property management regional owners committee 1 copy, which prove the fact that the industry committee was established according to law.

2. 1. A copy of the minutes of the meeting between the plaintiff's Industrial Information Committee and the defendant Wuxi Branch on June 5438+1October 65438+1October 2008, which proves that the Industrial Information Committee and Wuxi Branch held a meeting to request information.

3. 1. A copy of the minutes of the meeting between the defendant's property management company and the plaintiff's property management committee on June 23rd, 2008, which proves that both parties agreed to discuss the handover of Chunjiang Garden after the owner's autonomy.

A notice, which proves that the plaintiff's industry committee sent a notice to the defendant's property management company, informing it of the fact that the owners' meeting of Chunjiang Garden decided to implement owner autonomy, and asking the property management company to hand over relevant information and settle the salaries and daily expenses of relevant staff.

5.2. The Data Transfer Agreement of June 29th, 2008, the Data Transfer Agreement of June 29th, 2008 and the External Contract Modification Agreement of Wuxi Chunjiang Garden of June 30th, 2008, which prove that the plaintiff's property management committee and the defendant's property management company agreed to transfer relevant data.

6. On June 29th, 2008, the plaintiff's property management committee and the defendant's property management company signed the Agreement on Handling Personnel Relations in Wuxi Chunjiang Garden, which proved the fact that both parties had placed relevant personnel.

7.2. A copy of Wuxi Chunjiang Garden Exit and Handover Agreement dated July 23rd, 2008 17, which proves that the defendant property management company agreed to quit the property management of Chunjiang Garden on June 23rd, 2008 and handed over relevant materials.

8. On July 7, 2008 17, a copy of the List of Settlement Funds Transfer for Phase I and Phase II of Chunjiang Garden of Property Company. Prove the fact that both parties reached an agreement on the property that the defendant property company should hand over to the plaintiff property committee in 2008.

9. Letter from the plaintiff's property management committee to the defendant's property management company on July 2, 2008/KLOC-0. Prove the fact that the property management committee asked the property management company to confirm a series of agreements signed with the property management committee from June 23rd, 2008 to July 7th, 2008.

10.29 In July, 2008, the defendant's property management company replied to the plaintiff's industry committee, proving that the property management company had no objection to the agreements signed by both parties in four aspects: personnel relations handling, data transfer, foreign contract signing and material transfer, and asked both parties to continue to negotiate the settlement of expenses. It is proved that the handover list of July 17, 2008 is not a complete solution to all matters of both parties.

The statement of 1 1.2005-2007 revenue and expenditure and the daily report of partial fee collection and refund in 2004 issued by Wuxi Branch of the defendant, which prove that the income of the defendant's property management company from 2004 to 2007 was 5,967,370+0 yuan.

The defendant property management company and Wuxi Branch argued that on June 25th, 2002, the property management company and Jujiang Company signed the Early Property Management Contract through consultation, and the property management of Chunjiang Garden was actually implemented by Wuxi Branch. After the establishment of the plaintiff's industry committee, the two parties successively handed over the materials and so on, and reached a handover list on July 17, 2008, which clearly stated that the total amount of money that the property company should settle with the industry committee as of June 30, 2008 was 232,7931.87 yuan. This is the summary calculation of both parties in the implementation of property management in the early stage, and it is a package solution for all materials and properties that should be handed over to the industry Committee. Article 10 of the handover list is also clear: "The two parties agree that the income and expenses that should be borne by them within their respective management periods shall be borne by them." According to this agreement, it can be seen that both parties have settled all disputes, so at present, the claims of the industry Committee are beyond the agreed scope of both parties, and the exceeded claims should not be supported by the court. According to the agreement, the total amount of money that the property management company and Wuxi Branch should pay to the industry committee is 232,7931.87 yuan. After deducting the 54,059.55 yuan that has been approved to the property management company in the litigation request of the industry Committee, it has actually paid/kloc-0 1857995.72 yuan, so it still needs to be handed over to the industry Committee. For this part of the money, it is agreed to hand it in in time.

To say the least, even if the transfer list does not include part of the income from 2004 to 2007, the plaintiff's claim has no factual and legal basis and should be rejected. The main reason is that according to the relevant laws and local regulations, part of the income of * * * should be excluded from the cost calculation first, and the management expenses of the property management company should be compensated first, and the excess part should be guaranteed to be 8% of the profits of the property management company. After that, if there is still a balance, it can be enjoyed by the property management enterprise and the owner in a certain proportion. As far as this case is concerned, the management of Chunjiang Garden by the property management company and Wuxi Branch was originally meager profit, which could not reach 8% of the profit. Therefore, according to the above method, there is no distributable profit in some management income of Chunjiang Garden owners from 2004 to 2007. In addition, due to the fact that some owners of the residential area still owed the property management fee of 1, 3 1, 000 yuan before June 30, 2008, and the property management committee is the representative of all owners, it is required to exercise the right of set-off for this part of the arrears and deduct it from the money that the property management company should pay to the property management committee.

The defendant property management company and Wuxi Branch submitted the following evidence:

1.2002165438+1On October 25th, the defendant's property management company signed the Entrustment Contract for Pre-property Management of Chunjiang Garden with Jujiang Company, which proves that the property management company has obtained the qualification for pre-property management of Chunjiang Garden.

2. 1. An electronic transfer voucher of China Construction Bank, which proves the fact that the defendant's property management company has fulfilled its payment obligation of RMB 557,995.72 after the two parties signed the List of Settlement Funds for Chunjiang Garden Phase I and Phase II on July 17, 2008.

3. From July 2006 to June 2008, the Operation Statement of Chunjiang Garden Management Office proved that the property management operation of the defendant property company in Chunjiang Garden was meager, with a profit of only 63,539.46 yuan, and the plaintiff's claim was unfounded.

Wuxi Xishan District People's Court found out in the first instance:

On October 25th, 20021165438, the defendant's property management company negotiated and signed a preliminary property management contract for Chunjiang Garden with the developer Jujiang Company, stipulating that the property management company would carry out preliminary property management for Chunjiang Garden residential area developed by Jujiang Company, covering the first, second and third phases of Chunjiang Garden, with an area of 323,000 square meters and a construction area of 600,000 square meters. Within the agreed management period, the property management company shall collect property management service fees from the owners and property users according to the standards approved by the Price Bureau; Property fees for shops, underground garages and clubs within the property scope are not included in the property fees charged to the owners and must be listed separately. The management period stipulated in the contract is 165438+2002125 October (that is, the date of signing the contract) until the establishment of the committee. The contract also stipulates other related matters. After the contract was established, the property management company assigned its subsidiary Wuxi Branch to implement the pre-property management of Chunjiang Garden.

On February 22, 2007, the plaintiff Chunjiang Garden Industry Committee was established. After the establishment of the Industry Committee, it went through the registration formalities in Dongting Street, Xishan District, Wuxi City on June 2, 2008. On June 2, 20081day, according to the resolution made by the owners' meeting to implement the owners' autonomy, the property management committee sent a letter to the defendant property management company to clearly terminate the property management service contract with it, and requested the property management company to hand over the relevant materials and properties to the property management committee within 15 days after receiving the letter, and the handover was completed. After receiving the letter, the property management company sent its deputy general manager Zhu Jifeng to negotiate with Chang Benjing, director of the property management committee, on July 17, 2008, and reached a "handover list" with the nature of handover agreement. The agreement confirms that by June 30, 2008, the property management company should return the property management fees received by the industry committee after July of 1 year, various deposits kept by the owners, and part of the income of the community from June of 1 year to June of 2008, totaling 232,7931.87 yuan. Of which 1 890 93 1.87 yuan paid off before July 3, 20081,and the remaining 437,000 yuan was paid off before April 30, 2009. Article 10 of the agreement also stipulates that "both parties agree that the income and expenses that should be borne by them during their respective management periods shall be borne by them". This agreement is accompanied by a "list of settlement items" and a "payment agreement" confirmed by both parties. Among them, the Schedule of Settlement Items records that the parking fee collected by Chunjiang Garden Community in 2008 was 629,035 yuan, and the parking fee collected in advance in 2007 was 160, 180 yuan. 70% of the parking fee is managed by the industry Committee, and the property company will hand it over to the industry Committee.

During the trial of this case, the defendant property management company voluntarily fulfilled the payment obligation of 557,995.72 yuan on August 26th, 2008. Upon the application of the plaintiff's industry committee, the court ruled that the bank deposit of the property company was 6.5438+0.3 million yuan, and the property company actually paid 654.38+0.859532 yuan.

It is also found out that according to the financial statements of the defendant Wuxi Branch during the previous property management period, the income of Wuxi Branch in managing some properties of the owners of Chunjiang Garden includes three items: venue rental fee, parking management fee and club income, specifically: 200514151kloc-0/2.82 yuan. In 2006, it was 65,438+0,808,004.50 yuan; In 2007, it was 265,438 yuan+044,933 yuan; * * In 2007, some property management expenditures were RMB 298,654.38+RMB 055.95, RMB 497,204,5438+RMB 02 and RMB 430, 650 yuan. The above expenditures include property service fees, parking management fees, club fees (including swimming pool fees, maintenance fees, etc.) and other business taxes (including business tax, urban construction tax, education surcharge, price mediation fund, food risk fund and flood control security fund). Both parties have no objection to the above facts confirmed in the financial statements.

The above facts are proved by the evidence materials provided by the plaintiff's industry committee, the defendant's property management company and Wuxi Branch, as well as the trial transcript of this case, which is enough to be recognized.

The disputes in the first instance of this case are as follows: 1. Whether the handover agreement of July 17, 2008 has included all settlement matters, especially part of the owner's income from 2004 to 2007; Second, from 2004 to 2007, the definition and distribution of the owner's * * * * part of income; Three. Whether the defendant property management company can exercise the right of set-off against the property management fees owed by some owners.

Wuxi Xishan District People's Court held that:

About the focus of the dispute, the content embodied in the transfer agreement. The court held that the handover agreement of July 17, 2008 was the expression of the true meaning of both parties, and stipulated in detail the money that the defendant property company should return to the plaintiff's property management committee during the implementation of management in 2008, the owner's deposit entrusted during the whole preliminary property management period and the delivery time. According to the agreement, the amount that the property management company should return to the industry committee is 232,7931.87 yuan. However, it is worth noting that the agreement does not specifically record the income of the property management company and the defendant Wuxi Branch from the implementation of the owner's property management from 2004 to 2007. According to the financial statements of Wuxi Branch, the income is quite large. During the trial of this case, the property management company and Wuxi Branch interpreted Article 10 of the agreement as "the two parties agreed that the income and expenses that should be borne by them during their respective management periods should be borne by themselves": by signing this clause, the two parties have made a package settlement on the handover contents, and there is no other dispute. Even if there is a dispute, both parties should bear it separately and should not claim compensation from each other. However, the Committee believes that this clause only shows that there is no dispute about the transfer content listed in the list, which does not mean that it has given up its right to claim partial income distribution. The court held that the handover agreement between the two parties clearly handed over part of the income of * * * from June to June 2008, and the content of Article 10 of the agreement could not be understood as that the industry committee intended to give up part of the income of the owner of Chunjiang Garden before 2008. Therefore, the agreement should be an incomplete handover agreement, excluding some income from 2004 to 2007. According to the report of Wuxi Branch, from 2004 to 2007, * * * had huge income. As an organization that exercises rights on behalf of all owners, the authority of the industry Committee comes from the authorization of the owners' meeting. Without the authorization of all the owners, they cannot give up the main rights of the owners by their own will, even if they express their intention to give up, it is also an invalid civil act. Accordingly, the court held that the income of some properties from 2004 to 2007 was not reflected in the above transfer agreement, and the income should be distributed between property management enterprises and all owners according to law.

On the second focus of the dispute, the definition and distribution of part of the owners' income from 2004 to 2007. The court held that the so-called * * part of the property management income in this case should be the difference between the * * part of the income and the cost expenditure, and both parties have reached an agreement in the trial of this case, that is, part of the income and expenditure of the owners of Chunjiang Garden Community from 2004 to 2007 shall be subject to the statement of the defendant Wuxi Branch. The civil acts of both parties did not violate the prohibitive provisions of laws and regulations, and the court confirmed them. According to the court's review of this part of the report, the total income of some owners in the residential area from 2005 to 2007 was 5368050.32 yuan, and the total expenditure during the period was12254914 yuan, so the total income was 4142559./kloc-0. According to the statements provided by the plaintiff's industry committee, it is impossible to judge the income in 2004, and both parties cannot unify part of the income in that year. As a claimant, the industry Committee bears the burden of proof and should not bear the adverse consequences. Therefore, due to insufficient evidence, the court did not support the claim of income distribution in 2004 advocated by the industry Committee.

Regarding the distribution of income, the court held that the litigation income in this case benefited from the management behavior of the defendant's property management company and Wuxi Branch on the one hand, and it should also be noted that the property managed by the property management company belongs to all owners. * * * Some people have the right to income from * * * things, which is a legal right. For the distribution of this part of the income, all the owners and property management companies can distribute it through the contract. If there is no agreement, it should be distributed according to law. In this case, the two sides have no contractual basis for the distribution of this part of the income, so it should be distributed according to law. Because there is no specific provision in our country's law, the court thinks that the management income of some property should be distributed fairly and reasonably under the premise of not violating the legal principles. Property management has its particularity. During the implementation of property management, property management enterprises serve community owners, but some owners do not pay for their management. If the property management enterprise can't get economic returns after paying the management fees, it is unfair to the property management enterprise. At the same time, there are some things in the community as all owners, and all owners are the owners of things. If the owner's rights are excluded from income distribution, this obviously violates the legal principle. Accordingly, in the case of some management income in residential areas, the income should be mainly owned by all owners, and property management enterprises should also enjoy reasonable returns after paying management costs. To sum up, according to the requirements of the principle of fairness, and referring to the spirit of Article 33 of the Regulations on Property Management in Jiangsu Province, "After deducting the agency fees of property management enterprises, 30% of the proceeds will be used to subsidize the service fees of property management enterprises, and 70% of the proceeds will be included in the maintenance fund, unless otherwise agreed in the contract". At the same time, considering the distribution plan of * * * in the first half of 2008, the original defendant and the defendant decided through consultation, that is, the owner got 70% and the property management enterprise got 30%. The court held that it was reasonable for the plaintiff's industry committee to get 70% and the property management company to get 30% of the income distribution in this case. Accordingly, on behalf of all the owners of Chunjiang Garden, the industry committee enjoys the income of 4,654,38+042,559.654,38+08 yuan, of which 2,899,795,438+0.43 yuan. It is worth noting that the industry Committee has no right to dispose of this part of the money by itself. According to the relevant laws and regulations, this paragraph should be used as the maintenance fund of the community. As the executing agency, the Industry Committee shall use this paragraph in accordance with the will of the owners and the provisions of the law. The opinion that the property management company should first make up the management expenses of the property management enterprise, and the surplus should also meet 8% of the profits of the property management enterprise, and then redistribute the balance, was rejected by the court for lack of legal basis and agreement between the two parties.

Regarding the focus of the dispute, whether the defendant property management company can exercise the right of set-off against the property management fees owed by some owners. The property management company proposed that some owners still owed 13 1000 yuan in property management fees before June 30, 2008, but did not submit sufficient evidence to prove it. More importantly, Article 99 of People's Republic of China (PRC) Contract Law stipulates: "If the parties owe each other debts due, and the subject matter of the debts is of the same type and quality, either party may offset its debts with the debts of the other party. According to this provision, in order to offset the debts, the parties shall bear the debts of each other and enjoy the creditor's rights. In this case, the litigants are the plaintiff's industry committee, the property management company and the defendant Wuxi Branch, while the owner who owes the property management fee is a single subject. The industry Committee filed a lawsuit on behalf of all the owners of the community, although it also included the owners who owed money, but there was an essential difference between the two. Therefore, the creditor's rights and debts of both parties are different, which does not meet the statutory provisions of offset. Therefore, the claim that the property company exercises the right of set-off is not supported.

To sum up, the defendant's property management company should return to the plaintiff's property management committee the sum confirmed in the handover list (after deducting 54,059.55 yuan) and 70% of the income of the community from 2005 to 2007, that is, 2,273,872.32 yuan confirmed by both parties, and 2,899,796,5438 yuan +0.43 yuan that should be returned to the owner. Since the property management company has paid 1857995.72 yuan, it should still return 33 15668.03 yuan to the property management committee. As the defendant Wuxi Branch is a branch of a property management company without legal personality, it was established according to law, has certain organization and property, and has also implemented property management behavior, so it should share the above-mentioned return responsibility with the property management company. Accordingly, the Xishan District People's Court of Wuxi made the following judgment on June 2009 12, based on Articles 70, 73, 74, paragraph 3 and 79 of the People's Republic of China (PRC) Property Law, and Article 54, paragraph 2 and 55 of the the State Council Property Management Regulations, with reference to Article 33 of the Jiangsu Property Management Regulations:

1. The defendant's property management company and Wuxi Branch both returned RMB 33 15668.03 to the plaintiff's property management committee within three days after this judgment came into effect.

2. Reject other claims of the plaintiff's industry committee.

After the verdict was pronounced in the first instance, neither party filed an appeal within the statutory time limit, and the judgment has taken legal effect.

This case is too long. I still have one hundred here. I can't put so much down. You need to come to me.